Ethics in Dangerous
Responding to Suicidal Clients, Menacing Parties and Threatening Behavior
By Amber Hollister
On an ordinary day, ethics obligations may seem entirely mundane. But when faced with a client in crisis, an explosive opposing party, or the threat of harm, a lawyer’s ethics analysis may feel like a higher-stakes game. Considering the ethics of dangerous situations in advance can help lawyers provide a cool-headed and thoughtful response in the heat of the moment.
Each hypothetical question below is based on real-life questions posed by Oregon lawyers to the bar’s general counsel’s office.
Q: I think my client is suicidal. Yesterday in my office, he was distraught and told me he had nothing left to live for. This morning when I checked my voicemail he had left me a message thanking me for all I have done for him and wishing me well. It sounded like a goodbye. I’m worried; what should I do?
A: General counsel regularly fields questions from Oregon lawyers who are afraid their clients may be suicidal. Statements about contemplating self-harm should always be taken seriously. The U.S. Center for Disease Control reports that Oregon has one of the highest suicide rates in the country.1
According to attorney counselors at the Oregon Attorney Assistance Program, if you suspect your client is thinking about suicide, it is a good idea to ask your client a few basic questions to assess risk and take steps to secure help (see sidebar).
But what if you try to encourage a client to seek help and the client refuses? You may feel driven to contact a client’s family, friends, medical professionals or emergency services to secure help. Before reaching out to third parties, you should consider how your ethical obligations come into play.
Even in the midst of stressful circumstances, lawyers owe their clients a duty of confidentiality. RPC 1.6(a). This means that a lawyer must not reveal client confidences without a client’s informed consent, unless the disclosure is impliedly authorized to carry out the representation or an exception applies. RPC 1.6(b). Confidential information is broadly defined to include attorney-client privileged information, information that a client has asked a lawyer to keep secret, information that would likely be detrimental to a client if disclosed and information that would be embarrassing to a client if disclosed. RPC 1.0(f).
When a lawyer reasonably believes that disclosing confidential information about a client is necessary to prevent “reasonably certain substantial bodily harm or death,” RPC 1.6(b)(2) allows the lawyer to make a disclosure to the extent necessary to prevent the harm. When a client makes a credible threat of suicide, this exception allows a lawyer to disclose information necessary to protect the client from reasonably certain harm. The term reasonable “denotes the conduct of a reasonably prudent and competent lawyer.” RPC 1.0(k). In exigent circumstances, a lawyer may believe it is necessary to reach out to a client’s close friends, family or medical professionals and disclose the fact that a client is contemplating suicide. Alternately, a lawyer who is reasonably certain that a client is going to commit suicide could call 911 and request a welfare check on a client.
Clients who are contemplating suicide are often experiencing depression or another serious mental health issue. When a client is vulnerable due to a significant impairment of some kind, a lawyer may have limited discretion to take protective action. RPC 1.14. Any protective action a lawyer takes must be the least restrictive action sufficient to address the situation. See OSB Formal Ethics Op No 2005-41.
Explosive Opposing Party
Q: I just finished representing a petitioner in a FAPA restraining order case. After the judge entered an order in my client’s favor, the respondent glared at me. I later saw the respondent lurking outside my car in the courthouse parking lot and across the street from my office. Yesterday, I received an anonymous threat by email that seemed to refer to the FAPA case. I’m worried; may I call the police?
A: You should trust your instincts,and take steps to protect yourself. Under the circumstances described, reporting the respondent’s behavior towards you to law enforcement is permissible. Respondent’s conduct after the hearing is not confidential information that you have a duty to keep confidential. You should be careful, however, not to disclose information that you learned in the course of representing your client without her permission. If you want to share information with law enforcement, such as confidential information your client shared with you about respondent’s abusive behavior, you must seek your client’s informed consent. RPC 1.6(a).
If you elect to represent the petitioner against the respondent in the future, you should consider whether you have a self-interest conflict. RPC 1.7(a)(2). A self-interest conflict would arise if there is a significant risk your personal fear for your safety could materially limit your ability to represent the petitioner. See OSB Legal Ethics Op No 2009-182 (discussing whether a lawyer must seek to withdraw based on a self-interest conflict when a client files a bar complaint). The self-interest conflict rule is “based upon the concern that, when a lawyer undertakes the representation of a client with interests differing from the interests of the lawyer … the lawyer’s judgment might become impaired or the lawyer’s loyalty might become divided.” In re Kluge, 335 Or 326, 335 (2003) (applying former DR 5-101(A)).
A self-interest conflict can be resolved with your client’s informed consent as long as you can still provide diligent and competent representation to the client, despite your personal experiences with the respondent. RPC 1.7(b).
Note that the Oregon Attorney Assistance Program serves as a resource for lawyers who are fearful for their safety. An attorney counselor can speak with you about how to create a safety plan.
Threatening Client Behavior
Q: I am representing my client in a misdemeanor assault case. Yesterday after presenting a plea offer to my client, he became agitated, threw a box across the room and stomped out. He later called and told my secretary that I “was a terrible lawyer and deserved what I had coming.” The next week someone threw a rock through my car window. I am afraid of my client and want to withdraw. May I withdraw? May I call the police?
A: A lawyer who has been threatened by a client has a discretionary ground to withdraw for “good cause.” RPC 1.16(b)(7). The manner of the lawyer’s withdrawal, however, must comply with RPC 1.16.
Depending on the lawyer’s reaction to the client’s threat, the lawyer may also have a mandatory duty to withdraw based on a self-interest conflict. RPC 1.16(a)(1). In the case of a threatening client, a self-interest conflict would arise if there is significant risk that the lawyer’s interest in avoiding personal harm would materially limit the lawyer’s representation of the client. RPC 1.7(a)(2). The significance of the risk and the degree of limitation depends in part on the lawyer’s own personal reaction to the client’s threatening behavior. A material limitation could exist, for instance, if after the incident there is a significant risk the lawyer will be too afraid to communicate with the client about developments in his case or if the lawyer so loathes the client that dislike of the client would limit the lawyer’s ability to serve as an effective advocate. RPC 1.7(a)(2).2
Once the lawyer decides to withdraw, he or she must give the client notice of the withdrawal and comply with any applicable law requiring notice to or permission of a tribunal when terminating a representation. RPC 1.16(c); see e.g., UTCR 3.140, LR 83.11. When moving to withdraw, the lawyer must not engage in a “noisy” withdrawal that discloses client confidences. See OSB Formal Ethics Op. 2011-185. Under the circumstances described, it would likely be detrimental to the client’s interests to disclose that the client had threatened the lawyer. See RPC 1.6(a), RPC 1.0(f) (defining “information relating to the representation of a client”). If a court ordered the lawyer to disclose the reason for the withdrawal, the lawyer could reveal the information necessary to comply with the court’s order but should seek to disclose the information in a manner that is least damaging to the client (e.g., disclosure under seal or in camera). RPC 1.6(b)(5).
Upon withdrawal, the lawyer must take steps to the extent reasonably practicable to protect the client’s interests. RPC 1.16(d). This would commonly include providing the client with a copy of his or her file, returning all unearned fees in the lawyer trust account, moving to continue upcoming hearings and providing the client with a referral to other counsel. See OSB Formal Ethics Op 2005-1. When referring the client to new counsel, the lawyer may not disclose confidential information about the nature of the breakdown of the lawyer-client relationship without the client’s consent. RPC 1.6(a).
If the lawyer wants to file a police report about the client’s behavior, the report may not contain confidential information relating to the representation of the client, unless an exception to the duty of confidentiality applies. RPC 1.6. In the circumstances described, reporting that someone had thrown a rock through your window would not violate RPC 1.6(a) because the lawyer’s knowledge of the incident is not information acquired in the course of representing the client.
But, of course, law enforcement’s first question to the lawyer would be, “Do you have any idea who did it?” At that point, the lawyer may be tempted to report the client’s angry behavior in the client meeting and his threatening statement to the secretary. Before disclosing the client’s identity, the lawyer should proceed with care and examine whether an exception to the general duty of confidentiality applies.
RPC 1.6(b)(4) provides that a lawyer may disclose confidential information to the extent a lawyer reasonably believes necessary “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client ….” See OSB Formal Ethics Op No 2005-136 (addressing disclosures in context of lawyer’s wrongful-termination claim).3 Authorities are divided on what client information a lawyer-victim may disclose to law enforcement when initiating a criminal complaint. Compare Massachusetts Ethics Op 93-4 (1993) (advising that a lawyer and assistant may disclose client names to the police upon suspicion that clients stole money from assistant’s purse) and Arizona Ethics Op 93-11 (1993) (concluding lawyer may not disclose fact client paid him with a check for which the client knew there were insufficient funds because the controversy was not “strictly speaking, a controversy between a lawyer and the client” and the lawyer could seek to recover the fee through a civil action). While the issue is not settled in Oregon, from a common-sense perspective, it seems illogical that the client would be able to use the lawyer’s duty of confidentiality to commit crimes against the lawyer with impunity, at least where the lawyer does not have a viable civil remedy. As noted by the Comment (11) to ABA Model Rule 1.6, “this aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.”
As a last resort, the lawyer would be able to disclose confidential information to the extent reasonably necessary to comply with a court order. RPC 1.6(b)(5).4
General warning signs
1. The Centers for Disease Control ranked Oregon’s suicide rate second in the nation. Its statistics do not include legally assisted suicides.
2. Under some circumstances, self-interest conflicts may be resolved through obtaining informed consent from the client. RPC 1.7(b). A lawyer is not required to seek informed consent if the lawyer would prefer to withdraw. Informed consent can only resolve a conflict if the attorney reasonably believes he or she can continue to provide competent and diligent representation to a client despite the existence of a conflict. RPC 1.7(b)(1).
3. It is important to note that, at most, RPC 1.6(b)(4) would allow a lawyer to disclose information reasonably necessary for the lawyer to achieve the permissible objective, but would not allow the lawyer to disclose all confidences. See OSB Formal Ethics Op No. 2005-104.
4. Because in the scenario posed the lawyer does not reasonably believe disclosure is necessary to prevent client’s commission of a future crime, RPC 1.6(b)(1) does not apply. Similarly, because the lawyer does not reasonably believe that disclosure is necessary to prevent reasonably certain death or substantial bodily harm, RPC 1.6(b)(2) does not apply.
ABOUT THE AUTHOR
Amber Hollister is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free (800) 452-8260, ext. 312, or by email at firstname.lastname@example.org.
© 2015 Amber Hollister